Amendment 5 — Physical Takings

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Fifth Amendment :

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

When government institutes condemnation proceedings directed to property, or mistakenly grants privately held property rights to third parties,[1](https://www.law.cornell.edu/constitution-conan/amendment-5/physical-takings#fn1amd5 " United States v. Creek Nation, 295 U.S. 103 (1935). ") it “takes” such property and the Fifth Amendment requires just compensation. In contrast, where government action causes physical damage to property, limits activity on property, or otherwise deprives property of value,[2](https://www.law.cornell.edu/constitution-conan/amendment-5/physical-takings#fn2amd5 " There is continuing uncertainty regarding whether the actions of a court may constitute a taking. In Stop the Beach Renourishment, Inc. v. Fla. Dep’t of Env. Protection, Justice Antonin Scalia, joined by three other Justices, recognized that a court could effect a taking through a decision that contravened established property law. 560 U.S. 702 (2010). Justice Anthony Kennedy and Justice Stephen Breyer, each joined by one other Justice, wrote concurring opinions finding that the case at hand did not require the Court to determine whether, or when, a judicial decision on the rights of a property owner can violate the Takings Clause. Though all eight participating Justices agreed on the result in Stop the Beach Renourishment, Inc., the viability and dimensions of a judicial takings doctrine remains unresolved. ") determining whether such actions constitute “takings” in the Fifth Amendment sense is more complex.

In early cases, the Supreme Court considered the Fifth Amendment requirement that the government pay just compensation for property taken for public use to refer only to “direct appropriation, and not to consequential injuries resulting from the exercise of lawful power.” [3](https://www.law.cornell.edu/constitution-conan/amendment-5/physical-takings#fn3amd5 " The Legal Tender Cases, 79 U.S. (12 Wall.) 457, 551 (1871). The Fifth Amendment “has never been supposed to have any bearing upon, or to inhibit laws that indirectly work harm and loss to individuals,” the Court explained. ") Accordingly, the Supreme Court has held a variety of consequential injuries not to constitute takings, including: damage to abutting property resulting from the authorization of a railroad to erect tracts, sheds, and fences over a street;[4](https://www.law.cornell.edu/constitution-conan/amendment-5/physical-takings#fn4amd5 " Meyer v. City of Richmond, 172 U.S. 82 (1898). ") lessening the circulation of light and air and impairing access to premises, resulting from the erection of an elevated viaduct over a street, or resulting from the changing of a grade in the street;[5](https://www.law.cornell.edu/constitution-conan/amendment-5/physical-takings#fn5amd5 " Sauer v. City of N.Y., 206 U.S. 536 (1907). ") the forced sale of cattle due to loss of grazing land due to government flooding,[6](https://www.law.cornell.edu/constitution-conan/amendment-5/physical-takings#fn6amd5 " Bothwell v. United States, 254 U.S. 231 (1920). ") and a federal irrigation project that resulting in raised groundwater and lake water impacting nearby properties.[7](https://www.law.cornell.edu/constitution-conan/amendment-5/physical-takings#fn7amd5 " John Horstmann Co. v. United States, 257 U.S. 138 (1921). ") Nor did the Court hold the government liable for extra expenses property owners incurred addressing the consequences of governmental actions, such as expenses incurred by a railroad in planking an area condemned for a crossing, constructing gates, and posting gatemen,[8](https://www.law.cornell.edu/constitution-conan/amendment-5/physical-takings#fn8amd5 " Chi., Burlington & Quincy R.R. v. City of Chicago, 166 U.S. 226 (1897). ") or by a landowner in raising the height of dikes around his land to prevent their partial flooding consequent to private construction of a dam under public licensing.[9](https://www.law.cornell.edu/constitution-conan/amendment-5/physical-takings#fn9amd5 " Manigault v. Springs, 199 U.S. 473 (1905). ")

The Court has decided that the government can “take” land by physical invasion or occupation when it floods land permanently or recurrently, thereby triggering the just compensation requirement.[10](https://www.law.cornell.edu/constitution-conan/amendment-5/physical-takings#fn10amd5 " Pumpelly v. Green Bay Co., 80 U.S. (13 Wall.) 166, 177–78 (1872). Recurrent, temporary floodings are not categorically exempt from Takings Clause liability. Ark. Game & Fish Comm’n v. United States, 568 U.S. 23 (2012) (downstream timber damage caused by changes in seasonal water release rates from government dam). However, the Court has found damages due to flooding caused by government efforts to prevent erosion not to constitute a taking. Bedford v. United States, 192 U.S. 217 (1904). The Court has also held that flooding resulting from the construction of a canal was not a taking unless the overflow was a “direct result of the structure” and constituted an “actual, permanent invasion of the land, amounting to an appropriation of and not merely an injury to the property.” Sanguinetti v. United States, 246 U.S. 146, 149 (1924). The Court in Ark. Game & Fish addressed the seeming inconsistency of its decision with this language in the Sanguinetti decision, noting that to the extent the Court “indeed meant to express a general limitation on the Takings Clause, that limitation has been superseded by subsequent developments in our jurisprudence.” Ark. Game & Fish, 568 U.S. at 34. ") In its 1947 decision United States v. Dickinson, the Court stated that “[p]roperty is taken in the constitutional sense when inroads are made upon an owner’s use of it to an extent that, as between private parties, a servitude has been acquired either by agreement or in course of time.” [11](https://www.law.cornell.edu/constitution-conan/amendment-5/physical-takings#fn11amd5 " United States v. Dickinson, 331 U.S. 745, 748 (1947) ") The Court thus held in Portsmouth Harbor Land & Hotel Co. v. United States that the government had imposed a servitude for which it must compensate the owner on land adjoining its fort when it repeatedly fired guns at the fort across the land and established a fire control service there.[12](https://www.law.cornell.edu/constitution-conan/amendment-5/physical-takings#fn12amd5 " Portsmouth Harbor Land & Hotel Co. v. United States, 260 U.S. 327 (1922). Cf. Portsmouth Harbor Land & Hotel Co. v. United States, 250 U.S. 1 (1919); Peabody v. United States, 231 U.S. 530 (1913). ") In two cases—United States v. Causby and Griggs v. Allegheny County—the Court held that lessees or operators of airports were required to compensate owners of adjacent land when the noise, glare, and fear of injury occasioned by low altitude overflights during takeoffs and landings made the land unfit for the use to which the owners had applied it.[13](https://www.law.cornell.edu/constitution-conan/amendment-5/physical-takings#fn13amd5 " United States v. Causby, 328 U.S. 256 (1946); Griggs v. Allegheny Cnty., 369 U.S. 84 (1962). The Court held a corporation chartered by Congress to construct a tunnel and operate railway trains liable for damages when the plaintiff’s property was so injured by smoke and gas forced from the tunnel as to amount to a taking. Richards v. Wash. Terminal Co., 233 U.S. 546 (1914). ") The Court has also held in Cedar Point Nursery v. Hassid that a law requiring employers to allow union organizers to enter a business property effectuated a physical taking, and thus was unconstitutional in the absence of just compensation.[14](https://www.law.cornell.edu/constitution-conan/amendment-5/physical-takings#fn14amd5 " Cedar Point Nursery v. Hassid, No. 20-107 (U.S. June 23, 2021). ") The term “inverse condemnation” is often used to refer to cases where the government has not instituted formal condemnation proceedings, but the property owner has instead sued for just compensation, claiming that governmental action or regulation has “taken” his property.[15](https://www.law.cornell.edu/constitution-conan/amendment-5/physical-takings#fn15amd5 " Discussing the term “inverse condemnation,” the Supreme Court has noted: “The phrase ‘inverse condemnation’ generally describes a cause of action against a government defendant in which a landowner may recover just compensation for a ‘taking’ of his property under the Fifth Amendment, even though formal condemnation proceedings in exercise of the sovereign’s power of eminent domain have not been instituted by the government entity.” San Diego Gas & Elec. Co. v. City of San Diego, 450 U.S. 621, 638 n.2 (1981) (Brennan, J., dissenting). See also United States v. Clarke, 445 U.S. 253, 257 (1980); Agins v. City of Tiburon, 447 U.S. 255, 258 n.2 (1980). ")

The Fifth Amendment generally does not prohibit the government from collecting administrative and other fees incidental to conducting government business. For example, in United States v. Sperry Corp., the Court held that a 1% user fee deducted from awards granted by an international tribunal to cover the costs of administering that tribunal did not constitute a taking, but simply a “user fee.” [16](https://www.law.cornell.edu/constitution-conan/amendment-5/physical-takings#fn16amd5 " United States v. Sperry Corp., 493 U.S. 52 (1989). ") The Court further noted that “[t]he amount of a user fee need not be precisely calibrated to the use that a party makes of governmental services.” [17](https://www.law.cornell.edu/constitution-conan/amendment-5/physical-takings#fn17amd5 " Id. at 60–62. See also Cal. Reduction Co. v